Ecclesiastical divorce in hierarchical denominations and the resulting custody battle over church property: how the Supreme Court has needlessly rendered church property trusts ineffectual.

• Author: Gardner, Justin M.

INTRODUCTION

Controversy and conflict often define political life in America. Republicans and Democrats, along with the occasional third party, constantly fight to gain political power by emphasizing their differences on the hot political issues of the day, whether they involve foreign policy, taxes, abortion, or homosexuality. Political conflicts, especially those with moral overtones, divide neighbors and families. In political discourse, conflict is considered normal and even lauded because it fosters vigorous debate, which is necessary to the health of democracy. (1) But political conflicts do not always remain confined to the political arena; they often spill over into other aspects of Americans' lives, including their religious lives. (2) And when controversy embroils a religious organization, the organization may formally split. (3) Once a denominational split occurs, a constitutionally fraught question arises--who gets the church property? (4)

The legal issues surrounding church property disputes are pertinent today, particularly given the rise of one politically contentious issue on the American religious landscape: the role of homosexuals in ecclesiastical life. Given the moral and religious dimensions of this topic, it is not surprising that this politically potent issue has become increasingly contentious within ecclesiastical organizations. (5) This is especially true in America's mainline Protestant churches. (6) For example, the controversy surrounding the issue of homosexuality has been at the forefront of debates in the United Methodist Church, the Episcopal Church, and the Presbyterian Church USA. (7) In the Episcopal and Presbyterian USA churches, the controversy over homosexuality and its role in ecclesiastical life has escalated to the point where a schism appears increasingly likely. (8)

In the Episcopal Church, this issue has been at the forefront of church politics since 2003, when the denomination elected its first practicing homosexual bishop. (9) In addition, the Episcopal Church passed a resolution allowing individual churches within the denomination to bless same-sex unions. (10) These actions have created a firestorm within the denomination, leading many of the churches wishing to adhere to traditional sexual morality to seek separation from the denomination. (11) In fact, entire dioceses have taken steps to disaffiliate with the denomination and are seeking to align with more traditional Anglican bodies overseas. (12) In the Diocese of Virginia alone, eleven churches have voted to leave the Episcopal Church, including two of the diocese's largest and most historic churches--Truro Church and Falls Church. (13) The departing churches represent more than ten percent of the diocese's 90,000 members, and they are attempting to take millions of dollars worth of church property with them as they leave. (14) The property value of the historic Truro Church and Falls Church combined is estimated at $27 million to $37 million. (15) In response to this exodus, the Episcopal Diocese of Virginia has declared the church property "abandoned," and has taken legal steps to obtain the millions of dollars worth of property from the departing congregations. (16) The battle appears to be headed to civil court, as neither side seems willing to give up its claim to the property. (17)

A similar controversy has also engulfed the Presbyterian denomination. (18) At its church convention in the summer of 2006, the Presbyterian Church USA approved the controversial proposal of the "Theological Task Force on Peace, Unity and Purity of the Church." (19) This proposal gives the regional church bodies, called presbyteries, wider latitude to ordain practicing homosexuals as clergy and elders in the church, even though the official standards of the denomination bar such ordinations. (20) Following this action, many congregations have voted to leave the denomination, and many others are considering a split. (21) As many of these local congregations consider separation, they too must confront the looming question: will they be able to keep their church property? (22)

As the conservative and liberal factions of these churches consider the consequences of an ecclesiastical divorce, it is easy to overlook the constitutional dilemmas posed by taking the resulting property disputes before a secular court. This Note argues that the Supreme Court has misinterpreted the First Amendment and needlessly restricted the civil courts' adjudication of church property disputes within hierarchical Protestant denominations. The Supreme Court should allow civil courts to make factual determinations regarding religious and doctrinal matters and award church property to the faction that is found to be the most faithful to the church's founding doctrinal beliefs. Part I of this Note gives an overview of the methods of adjudicating church property disputes and shows how the Supreme Court has altered the way in which such cases are disposed. Part II explores the historical purpose behind the creation of property trusts in the ecclesiastical context and illustrates how the Supreme Court's current jurisprudence not only frustrates this purpose, but often works in opposition to it. Part III demonstrates that factual inquiries into religious matters do not abridge the Establishment Clause of the First Amendment, provided that they do not lead to normative determinations. In order to effectuate the purpose behind property trusts in the ecclesiastical context, the Supreme Court should allow the civil courts to make factual determinations regarding religious and doctrinal matters and award church property to the faction that is found to be the most faithful to the church's founding doctrinal beliefs.

1. CIVIL COURT ADJUDICATION OF CHURCH PROPERTY DISPUTES

   It seems unusual that an ecclesiastical body would turn to the secular courts to settle a dispute that is, at its core, religious. The situation of Kirk of the Hills Presbyterian Church, a congregation in Tulsa, Oklahoma, illustrates why an ecclesiastical body in its situation would rely on the civil courts for relief. (23) Kirk of the Hills Church has 2800 members and is the largest church to date to leave the Presbyterian Church in the wake of its decision to allow room for local bodies to ordain practicing homosexuals. (24) More than 1000 members of the local congregation met and voted to leave the Presbyterian Church USA by a wide margin--967 to 36. (25) As a result of this decision, the local congregation is now engaged in a fight with the denomination's regional body, the Eastern Oklahoma Presbytery, over the congregation's multimillion-dollar property. (26) Although the denomination claims that it has "an internal process for churches that wish to leave," Kirk of the Hills Church has little faith in this process; as a spokesman for the congregation has noted, "the presbytery acts as the judge, the jury and the benefactor." (27) This hardly seems like a fair process, considering that the presbytery has a vested interest in the outcome of such a procedure: ownership of the multimillion dollar facilities of the congregation. (28) Because of all the "money and sweat" that has been poured into the building by the members of Kirk of the Hills Church since 1961, they have vowed not to let their property go without a legal fight. (29)

   The Kirk of the Hills Church's distrust of the Presbyterian denomination's adjudicatory process is not without warrant. (30) The experience of Norcrest Presbyterian Church stands out as an example of what can happen when a local congregation becomes dissatisfied with the direction of the denomination and attempts to disaffiliate from it. (31) After Norcrest attempted to leave the Presbyterian USA denomination, the Maumee Valley Presbytery made an unexpected visit to the church. (32) During this early morning visit, the Presbytery "removed the pastor's possessions, changed the locks and took over the congregation's property." (33) That next Sunday, the congregation was forced to meet at the city dog pound for worship services. (34) Although worship services continue in the original facilities for a small minority of the congregation who did not desire to leave the Presbyterian Church USA, the vast majority of the congregation was left with little more than a sense of disillusionment with a process that was clearly biased in favor of the denomination. (35)

   As a result of the biases inherent in a denomination's internal adjudicatory proceedings, many congregations turn to the civil courts when they are confronted by a property dispute with the denominational hierarchy. There are three generally recognized methods of adjudicating church property disputes in the civil courts, but the Supreme Court has eliminated the use of one method and placed limits on the application of the other two methods. (36) The Supreme Court did so out of concern that the First Amendment prohibited civil courts from examining any issue relating to church doctrine. (37)

   The departure-from-doctrine method was the traditional common law method of adjudicating church property disputes. (38) Under this method, whenever a property dispute arose within a church, the civil court would determine which group was more faithful to the founding doctrines of the church and imply a property trust in favor of the group adhering most closely to these founding doctrines. (39)

   In 1871, the Supreme Court created a new test to resolve church property disputes in the case of Watson v. Jones. (40) This case involved a schism in the Walnut Street Presbyterian Church. (41) As a result of a dispute regarding the identity of the true ruling eiders of the church, the church split into rival factions, with each claiming the right to control the church's property. (42) To resolve this dispute, the Supreme Court created what is now known as the deference test. (43)

   Before the deference test becomes applicable...